Monday, August 31, 2009

Expert's confirmation that patient's fall caused injury deemed adequate to satisfy med-mal law

Expert doc was needed to certify blunt-force trauma and further validate coronor's ruling for civil liability purposes.

After med-mal reform, and a series of Supreme Court decision toughening the standards for pursuing health-care liability claims, including the threat of sanctions if deadlines are missed, or an inadequate or no expert report is served, immediate interlocutory appeals by healthcare providers/defendants have proliferated. This is one of them. Nothing can be taken for granted, and many PI attorneys are now reluctant to even bring such suits. Here, the reviewing court affirms the trial court's determination that the expert report was adequate. The defendant had contended otherwise and sought dismissal and attorney's fees. The facts alone, and the obvious injuries of the nursing home patient who was not properly handled and restrained, fell, and died, would not have sufficed to keep the case alive on the docket. An expert was needed to satisfy the statute.


This is an accelerated appeal by Nexion Health at Humble, Inc. d/b/a Humble Healthcare Center (hereinafter “HHC") from the denial of a motion to dismiss in a healthcare liability suit. HHC raises three issues concerning the denial of the motion and the failure to award attorney's fees and costs.

We affirm.

This appeal arises from a suit for damages, based on allegations of negligence against two nursing facilities.[1] Jeanette Blanc was a non-ambulatory patient at a nursing home, when an employee allegedly dropped her while giving her a bath. This fall caused a fracture of Blanc's hip. After surgery for the broken hip, Blanc was moved to HHC's facility. Soon thereafter, an employee at HHC's facility loaded Blanc into a van for transport to a doctor's appointment. Because Blanc was not properly secured in the vehicle, she was thrown out of her wheelchair and hit the floor of the van, resulting in facial contusions, swelling, nose lacerations and abrasions, as well as swelling to both knees and shins. After treatment for these injuries, Blanc returned to HHC's facility. A short time later, Blanc died. According to the coroner, Blanc died from “[c]omplications of blunt force injury with left hip fracture".

Because this is a healthcare liability claim, it is governed by Chapter 74 of the Texas Civil Practice and Remedies Code, which requires the claimant to furnish an expert report within 120 days after suit is filed. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (Vernon Supp. 2008). Appellees attached an expert report to their original petition. This report was prepared by David P. Wright, M.D. The two healthcare defendants objected to the expert report on a number of grounds. The defendants moved to dismiss for failure to comply with Chapter 74. The parties reached a Rule 11 agreement that plaintiff would provide an amended report. After the amended expert report was filed, the defendants filed a second motion to dismiss for failure to comply with Chapter 74. The trial court denied this motion and HHC filed this appeal.

* * *

In Wright, the supreme court held that an expert report must express the causal relationship in terms of reasonable medical probability and must summarize the causal relationship between the facility's failure to meet the applicable standard of care and Blanc's injury. Id. at 53. In Wright, the court found the expert report lacked information linking the expert's conclusion to the alleged breach. Id. See also Davis v. Spring Branch Med. Ctr., Inc., 171 S.W.3d 400, 410 (Tex. App.-Houston [14th Dist.] 2005, no pet.)(found no causal link between conclusory statements in expert report that failure to follow doctor orders regarding tube feeding, weighing of patient, and check of gastric tube position robbed plaintiff of quality of life and hastened loss of her legs).

Here, Dr. Wright did link the alleged breach (the failure to properly supervise and restrain Blanc in the vehicle) to the injury (the lacerations, contusions, neurological and cognitive insult contributing to her overall ill health and demise). Thus, the trial court could have determined the report did establish a causal relationship between the alleged breach of the applicable standard of care and the injury. As Dr. Wright's opinion explains, the fall from the wheelchair caused lacerations and contusions, but may have also causes cognitive and neurological complications that hastened her death. This is sufficient to establish a causal link between the breach of the standard of care and the injury.

Nexion Health at Humble Inc v. Whitley (Tex.App.- Houston [14th Dist.] Aug. 25, 2009)
HCLC denial of motion to dismiss affirmed, expert report adequate)
AFFIRMED: Per Curiam
Before Chief Justice Hedges, Justices Seymore and Sullivan
14-09-00052-CV Nexion Health at Humble, Inc. d/b/a Humble Healthcare Center v. Carolyn Whitley;
Clifton Kelly; Diddie Blanc; Billie Ray Kelly; and Judy Williams, Representative of the Estate of Jeanette Blanc, Deceased
Appeal from 11th District Court of Harris County
Trial Court Judge:
Mark Davidson

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